Seattle Trademark Lawyer

Plaintiff Pom Wonderful LLC sells the POM WONDERFUL bottled pomegranate juice.

Defendant Welch Foods, Inc., sells various bottled juices under its WELCH brand.

In 2006, Welch developed a juice blend it named “Welch’s 100% White Grape Pomegranate.” The ingredient declaration identifies the juices used in the product, namely white grape, apple, and pomegranate juices (from concentrate), but does not does not disclose the percentage of any of the juices.

In January 2009, Pom filed suit in the Central District of California for false advertising based on Welch’s use of the word “pomegranate” because the product allegedly contains very little pomegranate juice.

After a number of other motions, Welch filed a motion for summary judgment on its unclean hands defense. Welch argued that Pom had engaged in the same kind of conduct that Pom alleges is deceptive and misleading, including Pom’s failure to disclose that its 100% pomegranate juice product at one point contained elderberry and Pom’s sale of juice blends that, at one point, contained juices other than those identified in the product name.

The Central District of California concluded these facts were not sufficiently “egregious” or causally related to consumer deception to sustain Welch’s unclean hands claim on summary judgment.

“The Court finds that while Welch has offered undisputed evidence of Pom’s misleading label, Welch has not demonstrated by clear and convincing evidence that Pom’s conduct was ‘egregious.’ Welch has not offered evidence that Pom’s deception was material, i.e. that it induced customers to purchase a product that they otherwise might not have purchased. Welch has not attempted to link Pom’s inclusion of trace amounts of elderberry juice in its 100% Pomegranate Juice to consumer deception or harm. Its only evidence is that one customer called Pom asking whether ‘the plain pomegranate juice [has] any other ingredients in it’ and another customer stated to a Pom customer service representative: ‘I noticed on the bottle it says pomegranate juice from concentrate with added natural flavors. This implies that it is not 100 percent pomegranate juice …’ This anecdotal evidence, while unrefuted, does not establish that any appreciable number of consumers were confused such that Pom’s conduct could be deemed ‘egregious.’ Welch’s failure to demonstrate the existence or extent of harm caused by Pom’s deception precludes a finding that it would be inequitable for Pom to proceed on its claims.”

Unclean hands doesn’t simply mean the plaintiff was a bad actor. It means that the plaintiff has “dirtied his hands in acquiring the right presently asserted.”

The case cite is Pom Wonderful v. Welch Foods, Inc., 2010 WL 3368430, No. 09-567 (C.D. Calif. Aug. 25, 2010).